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1. The appellant was convicted in the Central Criminal Court after a trial before Quirke J and a jury on the 20th February, 1998, of the murder of David Nugent on the evening of the 8th and morning of the 9th July 1996 at Clonmel, Co. Tipperary and was sentenced to imprisonment for life. He was also convicted of robbery on the same occasion and a sentence of 12 years imprisonment was imposed in respect of that conviction. An application for leave to appeal having been refused, the appellant appealed to the Court of Criminal Appeal. The appeal was dismissed, but the court certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court pursuant to the provisions of s.29 of the Courts of Justice Act 1924.

2. The point of law certified by the Court of Criminal Appeal is as follows:

3. The appellant was arrested at his home in Clonmel at 2.54 p.m. on Sunday 14th July, 1996, and conveyed to Cahir Garda Station in the custody of members of An Garda Siochana. On his arrival at the Garda Station at 3.10 p.m., he was detained under s.4 of the Criminal Justice Act 1984 (hereafter “the 1984 Act”). Thereafter, he was questioned by a number of Gardaí who were investigating the murder of David Nugent, whose body had been discovered in the grounds of St. Michael’s Hospital at 12.30 a.m. on the previous Monday. The appellant had already been interviewed concerning the matter on the following day, Tuesday July 10th. On the evening of Saturday, July 13th, the gardaí had come into possession of information which, in their view, implicated the appellant in the crime.

4. The appellant made an inculpatory statement to two of the Gardai who were questioning him between 9.40 p.m. and 11.05 p.m. on the Sunday evening. On the following morning, at 8.00 a.m., the Gardaí recorded in writing answers by the appellant to questions put to him which were also inculpatory. Between 9.05 a.m. and 9.35 a.m. on that morning he made a further inculpatory statement.

5. The admissibility of the inculpatory statements made by the appellant while in custody was challenged at the trial on a number of grounds including that which is the subject of this appeal. That issue was tried by the learned trial judge in the absence of the jury and he ruled that the statements were admissible. That finding was upheld by the Court of Criminal Appeal.

6. On the trial of the issue in the Central Criminal Court, the Gardaí who conducted the questioning, a solicitor who came to the station and had a discussion with the appellant and the appellant himself gave evidence.

7. The factual background is as follows. The appellant was informed by the member in charge of the station at 3.15 p.m. that he was to be detained for a period of six hours and he was, at that stage, given a written notice setting out his rights while in detention. The appellant asked the member in charge to contact his parents and to inform them that he was in Cahir Garda Station and that was done. At 3.24 p.m., Detective Garda Kelly and Detective Garda Summers brought the appellant to an interview room and began to question him. During the course of that interview, the appellant, although admitting that he had engaged in drug dealing transactions with David Nugent in the past, denied that he was involved in any way in the attack on him which led to his death. The appellant in evidence said that, during the course of this interview, he said he would like a solicitor, but this was denied by the Gardaí.

8. That session of questioning continued until 4.50 p.m., at which stage Detective Sergeant O’Riordan entered the interview room and took over the questioning. It is not in dispute that, shortly after this session began, the appellant told Sergeant O’Riordan that he wanted to speak to a solicitor. Sergeant O’Riordan remained in the interview room questioning the appellant until 5.29 p.m., at which stage he was replaced by Detective Sergeant Healy and Detective Garda Clancy. As he left the interview room, Sergeant O’Riordan informed Sergeant Healy that the appellant wanted a solicitor and that he did not want to answer any questions until he had spoken to a solicitor. The garda who was the member in charge at that point, Garda Donal O’Connell, gave evidence of having attempted to contact a solicitor in Clonmel, Mr. O’Reilly, without success. He was then informed by the gardaí in Clonmel that they understood that Mr. O’Reilly was acting for the family of David Nugent and could not act for any of the persons who were being investigated in connection with his murder. The appellant, on being so informed, asked the Gardaí to contact Mr. Paul Morris, a solicitor, in Clonmel. Garda O’Connell, having failed to make contact with Mr. Morris, then endeavoured to make contact with other solicitors, but without success. Eventually, Mr. Ciaran Cleary, solicitor, was contacted at the golf club in Clonmel and was asked to attend at Cahir Garda Station. The difficulty in contacting a solicitor was understandable, it being a Sunday afternoon in summer and, in addition, there being a large sporting event on in the area. Mr. Cleary, the solicitor who was ultimately contacted and agreed to see the appellant, arrived at the station at 8.33 p.m..

9. In the meantime, however, Detective Sergeant Healy and Detective Garda Clancy continued to question the appellant until 6.45 p.m.. At that stage, he was photographed and blood samples taken from him. According to the appellant, at approximately 7.10 p.m., another person being detained in the station on suspicion of being involved in the murder was brought to the interview room, at which point he told the appellant that he had made a full statement and that the appellant should do the same. The gardaí alleged to have been present when this confrontation took place denied that it had happened. At 7.30 p.m., the appellant’s mother arrived at the station and saw him.

10. Mr. Cleary, the solicitor, when he arrived had an interview with the appellant. His account of the interview was as follows:

11. Mr. Cleary then left and told the gardai that he would not be involved.

12. The appellant in evidence gave a different account of the interview. He said that Mr. Cleary told him that there were already witnesses against him and that the best thing he could do was to make a statement. He also said that he did not regard Mr. Cleary as his solicitor The trial judge in his ruling on the issue said that he accepted the evidence of Mr. Cleary as to this interview.

13. At about 9.30 p.m., the appellant indicated to Sergeant O’Riordan that he would make a statement in relation to the matter. Having been cautioned in the usual terms, he then began making a statement which Sergeant O’Riordan committed to writing and he finished making it at 11 p.m. Sergeant O’Riordan then read the statement over to the appellant who signed it. It was witnessed by Detective Garda Cunningham.

14. In his statement, the appellant said that he met David Nugent by previous arrangement between 11 p.m. and 11.15 p.m. on the evening of 7th July. He was accompanied by two other persons whom he did not wish to name. He regularly met David Nugent at that time for the purpose of supplying him with cannabis. He said the other two knew that David Nugent would have a lot of money on him. He then described an assault perpetrated by the other two persons on David Nugent which culminated in a large rock being dropped on his chest: the appellant said that he took part in the dropping of the rock.

15. It should also be pointed out that, during the trial of this issue, the appellant gave evidence of having been assaulted by members of the gardaí and offered inducements to make a statement during the course of the questioning. Those allegations were denied by the gardaí in their evidence. The trial judge was satisfied, having heard the evidence of the gardaí and the appellant, that the statements made by the appellant should not be ruled as inadmissible on that ground. The trial judge’s ruling to that effect was upheld by the Court of Criminal Appeal and was not challenged on this appeal.

16. On behalf of the appellant, Mr. John O’Kelly SC submitted that the gardaí should have had regard to the difficulties which they were likely to encounter in providing the appellant with the services of a solicitor (having regard to the fact that it was a Sunday in summer and that there was a major sporting event on in the locality) in deciding to arrest the appellant at that particular time and to detain him under s.4 of the Criminal Justice Act 1984. The interrogation which followed and lasted for some hours was in breach of the constitutional right of the appellant to have access to a solicitor during his detention and this, accordingly, rendered the detention unlawful. He cited in support the decision of this court in People (DPP) -v- Paul Healy [1992] IR 73 and the decision of the Court of Criminal Appeal in the People (DPP) -v- Bernard Finnegan (unreported; judgment delivered 15th July 1997). That violation of the constitutional right of the appellant to the advice of solicitor tainted everything that thereafter happened in the course of his detention and it was, accordingly, not a relevant consideration that the inculpatory statements were not made until after the visit from the solicitor.

17. Mr. O’Kelly further submitted that, apart from the constitutional infirmity of the interrogation carried on at a time when the applicant had no access to legal advice, it was also vitiated by non -compliance with the provisions of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 (SI No. 119 of 1987) (hereafter “the 1987 Regulations”.) Regulation 12(6), which provides that, where an arrested person asks for a solicitor, he is not to be asked to make a written statement in relation to an offence until a reasonable time for the attendance of the solicitor has elapsed, had not been observed. He said that the claim by Detective Sergeant Healy that he was simply questioning the appellant at the relevant times and was not looking for a statement as such was disingenuous and that, accordingly, the substance of the regulation had not been observed.

18. Mr. O’Kelly further submitted that it was clear from his evidence that the appellant did not regard Mr. Cleary as his solicitor and that it followed that, at the time the inculpatory statement was made, he had not been furnished with advice by a person whom he had retained to act as his solicitor.

19. On behalf of the respondent, Mr. Patrick McCarthy SC submitted that the trial judge, on the voir dire , was entitled to conclude, as he did, on the evidence which he had heard that the gardaí were in possession of information on Saturday July 13th, that justified the arrest and detention of the appellant and that there was no obligation on them to defer the arrest and detention until the following Monday. It followed that the trial judge was entitled to conclude that the arrest and detention were made in good faith by the gardaí and not with a view to reducing the likelihood of the appellant having access to legal advice. He was also entitled to conclude that the gardaí made bona fide attempts to contact a solicitor as soon as they were requested so to do by the appellant. As to the questioning which admittedly took place between the request being made and the arrival of the solicitor, Mr. McCarthy submitted that, since the inculpatory statement on which the prosecution relied was not made until after the solicitor’s visit, there was no causative link between the breach of his constitutional rights, if such it was, and the making of the incriminating statement. He further submitted that if, as held by the Court of Criminal Appeal in the People (DPP) -v- Bernard Finnegan , a violation of the right of a person in detention to access to a solicitor rendered the detention unlawful, it was clear that in this case, unlike Finnegan, the detention ceased to be unlawful once the appellant had received the advice of the solicitor.

20. As to the alleged non- compliance with the 1987 Regulations, Mr. McCarthy submitted that s.7 of the 1984 Act made it clear that a failure on the part of a garda to observe any provision of the regulations would not of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him. It was in any event clear, he submitted, that what the regulations envisaged by a statement was a narrative by the person in detention which was reduced to writing by a garda and signed by the person in detention. A statement in that sense had not been taken from the appellant until after he had seen a solicitor and, in the result, there was no breach of Regulation 16.

21. Mr. McCarthy further submitted that the trial judge, on the voir dire , was entitled to accept the evidence of the solicitor as to what had transpired during his interview with the appellant and that, accordingly, the incriminating statements made by the appellant were admissible and could be considered by the jury.

22. The law as to the admissibility in evidence of confessions of guilt has for long been the subject of anxious consideration by courts in this and other jurisdictions. Three propositions are firmly established in our law:

23. There has been much judicial discussion as to the underlying policy reasons for the second and third of these principles. While considerations of fairness to the accused person are naturally prominent, they are not the sole reason for the existence of the principles: as Kingsmill Moore J observed in The People -v- O’Brien [1965] IR 142 at 160:

24. As the recent Australian cases of R -v- Swaffield , Pavic -v- The Queen [1998] HCA 1 demonstrate, considerations of fairness to the accused on the one hand and public policy on the other will frequently overlap. However, in the context of the present case, it is not necessary to consider the application of the first and second of these principles, since it is conceded that the trial judge was entitled to conclude on the voir dire that the inculpatory statement had been voluntarily made and that there had been no breach of the judges’ rules necessitating consideration by him of his residual discretion to exclude the statement.

25. In the present case, however, the inculpatory statements were made at a time when the appellant was being detained in custody under the provisions of the 1984 Act. Where a person is so detained, whether under that Act or some other statutory provision, he or she is entitled to the benefit of specific constitutional protections, in addition to the common law safeguards to which I have already referred. Giving the judgment of this court in In re Article 26 of the Constitution and The Emergency Powers Bill 1976 [1977] IR 159, O’Higgins C.J., said:

26. The right of a person in garda custody to reasonable access to a solicitor is also now enshrined in the 1984 Act and the 1987 Regulations, the relevant provisions of which are referred to in more detail below.

27. In this case, it is submitted on behalf of the appellant that the questioning of him by the gardaí after he had requested that a solicitor be obtained and before the solicitor arrived was a conscious and deliberate breach of the applicant’s constitutional right of access to his solicitor which rendered his detention unlawful and any evidence obtained while he was in such unlawful detention inadmissible.

28. That was said by the learned judge in the course of a dissenting judgment in that case and the matter was not dealt with in any of the other three judgments delivered by the majority of the court. Accordingly, the question as to whether inculpatory statements made by a person in custody who is subjected to questioning by a garda after he has requested the presence of a solicitor but before the solicitor arrives are admissible cannot be regarded as having been authoritatively resolved.

29. In such a case, it cannot be said that the constitutional right of access to a solicitor has necessarily been denied. In this context, the facts in The People (DPP) -v- Healy should be borne in mind. In that case, the defendant was arrested and detained by members of the Garda Síochána pursuant to s.30 of the Offences Against the State Act 1939 on suspicion of being in unlawful possession of firearms. After he had been interviewed for several hours by gardaí in relation to an attempted armed robbery of which he was suspected, he began to make a statement. Shortly thereafter a solicitor who had been retained by a member of the defendant’s family arrived at the garda station and sought an interview with him. He was informed that the defendant was being interviewed and, despite his protests, was told that he would have to wait. He was eventually permitted to see the defendant, but at that stage the taking of the statement had been completed. The trial judge ruled that the statement was inadmissible, because the defendant had been, without any excuse, denied a right of instant access to his solicitor and he, the trial judge, could not be satisfied that the incriminating admissions contained in the statement were made prior to the denial of that right of access.

30. Upholding the trial judge’s ruling, Finlay C.J. said that the failure by the garda to permit the solicitor to see the defendant as soon as he arrived at the station constituted a deliberate and conscious violation of his constitutional right of access to a solicitor and was also a complete failure to observe “reasonable standards of fairness” in the conduct of the interrogation. He added:

31. It would seem to be implicit in that finding of the learned Chief Justice that, if the trial judge in that case had been satisfied that the incriminating statement had been made prior to the arrival of the solicitor, it would have been admissible in evidence, since, at that point, there would have been no deliberate and conscious violation of the applicant’s constitutional right of access to a solicitor or so total a failure to observe reasonable standards of fairness as to require the exclusion of the statement.

32. It is also to be noted that there is no express statement in the judgment of the Chief Justice in that case or in the separate judgments delivered by Griffin J. and McCarthy J. that the detention of the defendant must be regarded as having been unlawful as from the time when the solicitor was refused access to him. The crucial issue, in the view of Finlay C.J., not dissented from by Griffin J. and McCarthy J., was whether there was a causative link between the breach of the right of access to a solicitor by the garda and the obtaining of an admission.

33. A slightly different approach is apparent in other authorities to which we were referred. In The People (DPP) -v- Madden [1977] IR 337, O’Higgins C.J., delivering the judgment of the Court of Criminal Appeal, said

34. Those remarks were obiter, since there had been no such request in that case. However, the question also arose in The People (DPP) -v- Finnegan , where the defendant, while in detention, was allowed to speak to his solicitor on the telephone but the member in charge of the garda station remained in earshot while the defendant was speaking to his solicitor. Barrington J., delivering the judgment of the Court of Criminal Appeal, having cited the passages to which I have referred from the judgments of O’Higgins C.J. in Madden and Finlay C.J. in Healy, said of the latter:

35. Whether or not it was a necessary implication of the passage in question in Healy that the defendant was regarded as being in unlawful detention from the time that he was denied access to his solicitor, it would seem in any event to be a logical corollary of the statement of the law by this court in In Re Article 26 and the Emergency Powers Bill 1976 , i.e., that the detention of a person against his will pursuant to a statutory power is permissible only where his constitutional right of reasonable access to a solicitor is observed. It would seem to follow inexorably that his/her detention becomes unlawful as soon as that right is denied.

36. Assuming that, in the present case, the trial judge was entitled to conclude that the arrest and detention of the appellant was lawful and did not constitute a mala fide attempt to ensure that he was without legal advice while he was being interrogated and that the gardaí made bona fide attempts to secure the presence of a solicitor when the appellant requested them to do so, it would follow that there was in this case no deliberate and conscious breach of his constitutional right of reasonable access to a solicitor and, on that assumption, his detention remained lawful. It would also seem to me that, where a person being detained under a statutory provision asks for a solicitor to be present and the garda make bona fide attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy. Such an approach would seem preferable to a rigid exclusionary rule that would treat such statements as inadmissible without any regard to the circumstances prevailing in the particular case.

37. I should also refer to the relevant statutory and regulatory provisions.

38. Section 5(1) of the 1984 Act provides that

39. Article 9(2)(a) of the 1987 Regulations provides that

40. Regulation 12(6) provides that

41. Section 7(3) of the 1984 Act provides that

42. The trial judge, in this case, was satisfied that the gardaí in this case had reached the conclusion on the evening of Saturday 13th that there were grounds for charging the appellant with the murder of David Nugent and he was further satisfied that they were not obliged, in those circumstances, to defer the arrest of the appellant until the following Monday. He indicated that, if on the evidence it appeared that a conscious and deliberate attempt had been made to deprive the appellant of the services of his solicitor or to arrange matters so that he would have no contact with his solicitor, the situation would have been otherwise. I am satisfied that the trial judge was entitled to reach that conclusion on the evidence before him on the voir dire .

43. The trial judge was also satisfied that the gardai made reasonable attempts to get in touch with the solicitor nominated by the appellant, Mr. Peter Reilly, and, when he was not available to act, sought to obtain the services of other solicitors for the appellant. I am satisfied that, in these circumstances, the trial judge was entitled to conclude that there had been no breach of the appellant’s constitutional right of access to a solicitor and that the Court of Criminal Appeal were correct in holding that this finding could not be disturbed on appeal.

44. I am also satisfied that the trial judge was entitled to accept, as he did, the evidence of Mr. Cleary, the solicitor, as to what transpired between him and the appellant on the evening of July 14th in the garda station and that the Court of Criminal Appeal were also correct in holding that his finding could not be disturbed on appeal.

45. Since the trial judge was, on the evidence, entitled to conclude that there had been no conscious and deliberate violation of the appellant's right of access to a solicitor, it follows that he was at no time in unlawful custody and that, accordingly, the inculpatory statements made by him were properly not treated as inadmissible on the ground that he was in unlawful custody when they were made. Even if the continuation of the questioning by the gardaí between the time that he asked for a solicitor and the arrival of Mr. Cleary at 8.33 p.m. could be regarded as a conscious and deliberate violation of his constitutional rights, there was no causative link between the breach in question and the making of the incriminating statements. The appellant had not made any incriminating statements prior to the arrival of Mr. Cleary and, on the trial judge’s findings, had been advised by Mr. Cleary as to his right not to make any statement. The trial judge also accepted Mr. Cleary’s evidence that, at that point, the appellant was relaxed and not showing any signs of stress. It follows inevitably that there was, on the evidence, no causative link between any breach of the applicant’s constitutional rights arising from the questioning before the solicitor arrived and the making of the incriminating statements.

46. As to the submission on behalf of the appellant that there had been a breach of Article 12(6) of the 1986 Regulations, it is, of course, the case that, had the appellant, in response to the questioning by the gardai before the arrival of the solicitor made a written inculpatory statement, an issue would have arisen as to the admissibility of the statement. Whether it was admissible in terms of the Regulations would depend on whether “a reasonable time” within the meaning of the regulation had elapsed and whether, even if a reasonable time had not elapsed, it should nonetheless be admitted, having regard to the provisions of s.7(3) of the 1984 Act. Again, it would seem to me that this would be a matter for the discretion of the trial judge to be exercised having regard to the circumstances which arose in the particular case. Since, however, in the present case no written inculpatory statement was made until after the arrival of the solicitor, there was no breach of the regulations.

47. I would dismiss the appeal and affirm the order of the Court of Criminal Appeal. I would answer the certified question in the negative.